The United States Department of Justice under former-President Obama largely gave the states a free hand in developing their own medical marijuana systems. Medical marijuana law provides a unique interplay between state and federal law and one that is constantly changing. Now under President Trump, the way the Department of Justice approaches this interplay will almost certainly change.

A. Controlled Substances Act

Marijuana—medical or otherwise—remains a Schedule 1 drug under the Controlled Substances Act.[1] Under the Controlled Substances Act, “Schedule 1 drug” means that there is no legitimate medical usage for marijuana.

In United States Supreme Court case, Gonzales v. Raich, the court found that the states may not permit what the federal law prohibits.[2] With federal law clearly forbidding marijuana in any form, the question is then: How can states permit it?

The answer comes from two separate sources in federal law:

1. the Cole Memorandum and

2. the Continuing Appropriations Acts.

B. The Cole Memorandum

The Cole Memorandum[3] was a memo issued by the Obama administration’s Department of Justice. It told the American public that the Department of Justice would not prosecute state-legal medical marijuana dispensaries and patients. It was a general statement of the administration’s prosecutorial priorities. It was NOT law.

However, it had a wide impact on how states, businesses, and individuals approached medical marijuana. In its wake, more and more states started to implement medical marijuana legal schemes. There are now twenty-eight (28) states with legal medical marijuana.

These businesses and patients have been largely relying on the Cole memo in their decision to push forward.

C. The Continuing Appropriations Acts

In 2014, 2015, and 2016 Congress passed Continuing Appropriations Acts that contained a clause withholding funds from the Department of Justice in order to prevent the Department of Justice from interfering with state medical marijuana laws. This clause is sometimes referred to as the Rohrabacher–Farr amendment.[4]

The 2015 Act states:

None of the funds made available in this Act to the Department of Justice may be used… to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.[5]

Many states and territories (the “Medical Marijuana States”)[6] have already passed laws authorizing patients to receive medical marijuana as treatment for their ailments.

The Department of Justice may not use the funds allocated to it to enforce the general prohibitions of marijuana as a Schedule I Narcotic[7] as long as the target individuals in compliance with state law.

Since its passing there have been a series of cases that culminated in a case called United States v. McIntosh. [8] The United States Court of Appeals for the Ninth Circuit heard ten cases challenging the federal prosecution of medical marijuana patients. These cases involve criminal defendants who were charged with violations of federal narcotics laws while ostensibly in compliance with the laws of their respective states.[9] On August 16, 2016 the Court issued its decision.

The court determined that federal law prohibits the prosecution of these cases when the defendants are otherwise in compliance with state law.

McIntosh deals with a unique interplay of conflicting statutes, the Controlled Substances Act and the Continuing Appropriations Acts of 2015 and 2016. The former proscribes the possession, sale, and use of marijuana in any form, and the latter prohibits the DOJ from interfering with state medical marijuana laws. Since McIntosh, courts have followed the precedent set.[10]

This decision is far reaching in its holding that enforcement of the Controlled Substances Act is estopped in the Medical Marijuana States when those who would be prosecuted are in compliance with their state laws. Medical Marijuana businesses and patients are safe from prosecution only if they maintain compliance with their state medical marijuana laws.

However, the McIntosh decision does not change the underlying prohibition of marijuana under federal law:

To be clear, [the Consolidated Appropriations Act] does not provide immunity from prosecution for federal marijuana offenses. The [Controlled Substances Act] prohibits the manure, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow.

Nor does any state law "legalize" possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.[11]

Several states have enacted medical marijuana laws that license organizations to grow and distribute cannabis products for limited medical purposes and license patients to purchase and consume them. The state and federal laws come into conflict in these states.

The current act only prohibits the funding of the DOJ to go after those in the Medical Marijuana States that are in compliance. It does not change the underlying fact that these individuals are not in compliance with federal law.

Appropriation acts are temporary measures and—as the court notes—the law could change tomorrow. It does not discuss recreational marijuana, and is presumably still illegal after this decision; only medical marijuana is permissible.

Medical Marijuana remains illegal under federal law, and will remain so, but the Department of Justice may not enforce that law.

The Trump Department of Justice

President Trump nominated Jeff Sessions to be the next Attorney General of the United States, and Sessions was confirmed on February 8, 2017. As Attorney General, Jeff Sessions has the ability to change the priorities of the Department of Justice.

Whether prosecution of medical marijuana clinics or patients is such a priority is still unknown. There has been no real guidance on the Trump Administration’s view, but we have some hints as to what these priorities may be.

Attorney General Sessions has been on record over the course of his career as anti-marijuana. In April 2016, then-Senator Sessions said, “that good people don't smoke marijuana."[12]

As recently as April 2017, Attorney General Sessions has made his antipathy towards marijuana known. In a speech in Arizona, he said, "When they nominated me for attorney general, you would have thought the biggest issue in America was when I said, 'I don't think America's going to be a better place if they sell marijuana at every corner grocery store. . . . (People) didn't like that; I'm surprised they didn't like that."[13]

However, there are signs that the Trump administration will be more in favor of legalization of medical marijuana. In an interview with the Washington Post, then-candidate Donald Trump said, “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.”[14] In an interview with Fox News’s Bill O’Reilly, during the campaign, he said, “medical marijuana, medical? I'm in favor of it a hundred percent.”[15]

Ultimately, the policy is by the President, and so there is reason for those in favor of legalization to be optimistic. The White House has not announced a new policy yet, but state legislators, businesses, physicians, and patients wait anxiously to see how this new administration will treat medical marijuana.

[9] The matter was “remand[ed] with instructions to conduct an evidentiary hearing to determine whether Appellants have complied with state law.” Id. at *32. No legal determination was made regarding whether the defendants were in compliance with state law.